Jackson Free Press

In Dale Danks' letter telling Kim Wade to retract his petition for removal, Danks calls Wade's petition "Frivolous," harassing" and "vexatious". Danks' letter (PDF, 300KB) further (mis)characterizes Wade's petition as "without substantial justification, interposed for harassment," and having "no realistic hope for success."

Wade's petition (PDF, 270 KB) is hardly frivolous given the mayor's abuses of power, and in submitting the petition Wade is simply exerting his sacred First Amendment right to "petition the government for a redress of grievances".

Danks, as an attorney for an elected official, should really read that Amendment and study its origins. If he's at all honest, he'll appreciate the parallels between this mayor's administration and the situation that led the Founders to insert that clause into the First Amendment.

From the Declaration of Independence: In every state of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Previous Commentsshow

He's a lawyer: honesty is put into blind trust upon passing the bar.

Ironghost

Feb 22 2007

Sorry, I want Melton out too, but there's no First Amendment problem with what Danks is doing. First --not to be pedantic, but-- Danks is a private citizen, not a state actor. The First Amendment doesn't protect Wade from criticism of his speech, only from sanction by the government. Second, the First Amendment doesn't guarantee the right to take up a court's time with any argument that pops into your head. If it did, the judiciary couldn't function. To prevent that, courts have rules providing for dismissal of claims that are "frivolous", "vexatious", and otherwise without merit, and for sanctions against parties who bring them in bad faith. These rules might impede some small amount of free speech at the margin, but there's no way the courts could operate without them, and they're clearly constitutional. (That said, of course Wade has every right to "petition the government," but he doesn't get to unilaterally choose the forum. His grievance --that Melton is a bad mayor-- is properly addressed to (a) Jackson voters, and (b) if he must use other channels, the Governor and legislature, who create municipal governments and ultimately have authority to unmake them.)

laughter

Feb 22 2007

Your points are well taken, Law talker, but you don't think Wade's petition here is frivolous or harassing, do you? Danks can put on a big chicken dance, as lawyers are wont to do--indeed, it's part of what lawyers are supposed to do. But considering that the courts have never--so far as I know--made it explicit that the Constitution gets cashed out in the felony-removal law (that "misdemeanor" in the Constitution does not mean a crime punishable by less than a year in jail), you wouldn't call the petition frivolous, would you?

Brian C Johnson

Feb 22 2007

Declaration of Independence has no standing as a source of law in a courtroom. None. Nada. zilch. Danks is merely aggressively defending his client as any good lawyer will do. As long as Wade has a reasonable basis in law for his claim to rest upon, then such a suit by Danks won't win.

Kingfish

Feb 22 2007

He is just using the law as it is written. How that is frivolous or harassing is beyond me. Melton did what he did; and by taking a plea you are admitting you broke the law. He certainly broke a law much more important than jay-walking or not having a fishing license. Hey, he took a gun in a classroom of students without certification or proper training to even handle the gun he had. Considering, we will expel a 7th grader for just bringing a gun to school, shouldn't Melton be responsible for his actions. Just don't forget. Higginbottom said yesterday on Kim's show, "That I would rather have pedophilia than all the killings going on around here." That man is on the City payroll as a temp. This man is a personal confidant of the mayor. This man is sick and some children's rights groups needs to step up and denounce what he said. They need to call for the mayor to fire him and distance himself from him and his buddies. That has to be one of the sickest statements ever made by an adviser of a public official! As long as Melton and Blunston stand by Higg. they are showing that they are no better then the sickos in the world who rape and abuse children!

pikersam

Feb 22 2007

Brian -- You're right. I don't think it's frivolous, not because I think Wade has a valid argument based on current law (the MS Code is clear that "misdemeanor" isn't to be taken literally), but rather because I think Wade has a non-frivolous argument for changing existing law. To wit: the Mississippi Constitution says "misdemeanor," courts should read that term literally, and should ignore any statutory provision to the contrary. There's no way that's a winning argument --i.e., it will be dismissed-- but it's coherent enough that Wade shouldn't be sanctioned for bringing it. (But likewise, Danks would have a non-frivolous --but non-winning-- argument that Wade's argument is frivolous. If that's confusing enough for you. In other words, Danks is right to suggest sanctions, even if he probably can't actually get them.)

laughter

Feb 22 2007

It strikes me that none of this 'big chicken dance' would be necessary if this petition were truly frivilous. Almost immediately after the plea agreement regarding the mayor and his pleading, Melton, in a press conference, said that the law Kim Wade is using "did not apply" to his situation. Either it applies or it does not apply. None of this other noise is necessary, IMHO.

ChrisCavanaugh

Feb 22 2007

Kingfish, Just to clarify: I'm not suggesting that the Declaration of Independence has legal standing. I use the quote from the Declaration to illustrate that the Founders' efforts to petition their government was dismissed and abused, as is Wade's petition being dismissed and abused by our own little king via Danks.

Brent Cox

Feb 22 2007

Law Talkin' Guy, I agree that the letter to Wade doesn't violate his First Amendment right to petition the government. Far from it. It's Melton and Danks' First Amendment as well. My criticism is with the characterization of Wade's petition as "frivolous," "vexatious," etc. Has anyone seen the letter? The Ledger article says that it "warned radio personality Kim Wade to withdraw his complaint against the mayor". What does "warned" mean here?

Brent Cox

Feb 22 2007

Brent, we have the letter. Will post a PDF shortly. Also, I was going to weigh in on your behalf in response to LTG, but didn't get to it before. I agree with your characterization of Danks' letter; it indicates a lack of understanding of the First Amendment. Obviously, he can criticize Wade's letter, but anyone else can also criticize Danks' criticism of it. It's all free speech, every step, but that doesn't mean that a level of that speech isn't showing a lack of understanding of the First Amendment, which was you original point. It's those layers of free speech and response where folks get bogged down too often.

DonnaLadd

Feb 23 2007

I added a PDF of Danks' letter and moved this thread to noise. Any of our blog lawyers want to take a gander? Law talker? Ray?

Brian C Johnson

Feb 23 2007

The terms Danks used are legal code words, taken directly from the civil rules and/or statutes. Rule 11 of the Federal Rules, for example, allows sanctions for bringing "frivolous" claims that are without merit. Mississippi's rule is substantially similar -- I'd guess, without having checked, that you'd find "vexatious" right there in the statute, or in some controlling case law. In short, Danks is just using the magic words to say, in legalese, "Your claim is legally meritless, and should be withdrawn. If it's not, there might be sanctions." ("Warned" is significant because parties seeking sanctions for "frivolous" lawsuits must first provide notice to the opposing party, to give them a chance to withdraw or amend. That's almost certainly the reason for Danks's letter.) All that to say, Danks didn't make up most of the terminology he uses. (Of course, the remainder of the letter may contain unnecessary and/or inflammatory language. I don't know; I haven't seen it yet.)

laughter

Feb 23 2007

"Vexatious" is simply a delightful word. Right up there with "execrable." ;-D

DonnaLadd

Feb 23 2007

Okay, I took a look at it. It's your standard, required Rule 11 notice, as described in my previous post.

laughter

Feb 23 2007

Vexatious" is simply a delightful word. Right up there with "execrable." ;-D so pithy

Kingfish

Feb 23 2007

Having read Danks' letter, my quote from the Declaration of Independence is proves even more relevant. The Founders were complaining about the king responding to their petitions with "injury". Here we have Wade petitioning the government, and the government's response is to send this bullying letter. Melton is indeed that "prince" whose character is "marked by every act which may define a tyrant". In every state of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Brent Cox

Feb 23 2007

Danks' letter is typical and routine bluster that means absolutely nothing. I get similar letters from defense lawyers all the time. I keep them all in a file, in case we run out of toilet paper. Letters like this are nothing more than a cheap and reliably ineffective attempt at intimidation.

Curt Crowley

Feb 23 2007

Thats what I tried to tell them Curt. Danks knows exactly what the first amendment means.

Kingfish

Feb 23 2007

Letters like this are nothing more than a cheap and reliably ineffective attempt at intimidation. I hope you never decide to defend me. ;-)

DonnaLadd

Feb 23 2007

Why? I don't think you'd be intimidated by a letter like that.

Kingfish

Feb 23 2007

It's a joke, 'Fish. I think it's funny to defend an attorney's letter by calling it " cheap and reliably ineffective attempt at intimidation." That's all. ;-)

DonnaLadd

Feb 23 2007

... and it makes me glad I dropped out of law school.

DonnaLadd

Feb 23 2007

kill da ladd-it kill da ladd-it kill da ladd-it I will kill da ladd-it with my magic helmmm-uht

Kingfish

Feb 23 2007

That is all they are are just shots across the bow. Standard stuff. I don't think it was worth a story to be honest but I do see the humor as you do.

Kingfish

Feb 23 2007

Worth what story? This is a posting by a Jack-blogger.

DonnaLadd

Feb 23 2007

kill da ladd-it kill da ladd-it kill da ladd-it What in hell are you jabbering about, 'Fish? Have you lost your mind again? Why don't you put it in a fanny pack or something so it won't shake loose so often??

DonnaLadd

Feb 23 2007

ah got it about the story. my apologies. Read the story just didn't pay close attention to byline. Its something from that Bugs Bunny cartoon I linked. Merely having some fun with you. I'm from louisiana, if I don't have a certain level of alcohol in my brain, it don't operate and I'm very dry right now.

Kingfish

Feb 23 2007

I wasn't defending the letter. I was mocking it.

Curt Crowley

Feb 23 2007

I know Mr C. I was laughing with you.

Kingfish

Feb 23 2007

I was right! All they can do is a Rule 11 sanction. Nothing more. And there is a "hope" that the damn judicial system will FINALLY step up..., so, that should automatically pass Rule 11 muster. funny letter though.

LawClerk

Feb 23 2007

all I can say is, this motion isn't as frivolous as it appears. Do your research. There is a little known bit of law somewhere else that makes this plausible. ;-)

Kingfish

Feb 23 2007

Huh. I must not have read enough on it. Whats the big secret Kingfish, enlighten us. Do any of you think Wade has standing to bring this action? Perhaps that is what Danks means by frivolous. Wade is pro se so I would think he probably would not catch sanctions. Rule 11 sanctions are pretty rare anyway.

Niles Hooper

Feb 23 2007

Curt is correct, Danks is just trying to intimidate Kim Wade. Though I suspect that Wade is not really fearful of him, I mean does anybody remember the last time Danks has lit somebody up in the courtroom? Was it back in 70's?

snowjob

Feb 24 2007

true. but I still loved it when he seized city hall. that was greatness.

Kingfish

Feb 24 2007

I don't understand why one would think that the first amendment has anything to do with the actions going on here. Wade likely doesn't have standing to have filed this suit. Danks, representing Melton the individual (not Melton the State Actor) has every right to threaten a Rule 11 motion for sanctions. I do think it would be interesting to see the transcript of a deposition of both Wade and Melton. Wade for getting to the bottom of his claims (and those claims that are not asserted in this complaint regarding Melton being a pedophile and a drug dealer) and Melton for his perspective on what, exactly, he has been doing.

hmg

Feb 25 2007

Hmg, no one is arguing that Melton/Danks have no 1st Amendment right to do this. The point is that the part of the 1st Amendment that was added to protect the right to "petition the government" was added under circumstances similar to what Wade is facing. Nothing here is contrary to the Constitution, it's contrary to an executive branch that cares more about good government than bullying its citizens.

Brent Cox

Feb 25 2007

I can't comment on the law. However, I have heard from "reliable sources" that Dank's letter was the least of the "heat" applied to Kim. Interested parties apparently applied pressure to remove Kim from WJNT. This "pressure" was allegedly removed. I hate to interrupt this thread, but would someone tell me who is Mr. Higginbotham (Higginbottom?)? I heard him on Kim's show. It was clear to me that this man does not believe in the rule of law, and believes that storm-trooping and vigilantism should be the law of the land. His views were EXTREMELY disturbing, and, I believe, reflect those of Frank Melton. HDMatthias, MD

HDMatthias, MD

Feb 26 2007

Mr. Hickingbottom is a political operative who was on Mr. Melton's campaign payroll. He was the one who went on radio shows and the like and tried to discredit people who publicly criticized the mayor. Now, he's on city payroll -- or, he is being paid by a temp agency, actually -- for a job with Public Works, I believe. He still, though, is making the rounds of the media to defend Mr. Melton and, more disturbing, lambaste his opponents. He seems to have helped organized the "vote Melton not guilty" rallies (or at least people were carrying signs that said that). It says something not-good that Mr. Melton would send someone around to do and say the things that Mr. Hickingbottom has said. It's remarkable, really, that he thinks so little of the intelligence of the public that he would try this kind of trickery.

DonnaLadd

Feb 26 2007